1. ' The facts necessary for appreciating the submissions of the parties are that the house in dispute, which was an evacuee property, is under occupation of the parties along with other persons. A portion of the property has been transferred by the Settlement Department in favour of the respondent but the remaining part of the house is stated to have not been disposed of yet. It is claimed that proceedings for transfer of the remaining portion are going on before the concerned Settlement Authorities but in the meanwhile the respondent has started digging foundation for constructing a wall, which if constructed, will be blocking the passage of air and light to the remaining portions of the building and which will also block some doors of the portion in occupation of the petitioner with the result that she will not be able to approach the other rooms in other storeys of the same building. The petitioner, an occupant of the "undisposed of" part of the building, filed a suit for permanent injunction restraining the respondent from raising any construction to block the passage to upper storeys and from interrupting the passage of air and light to the portion occupied by her. The learned trial Court, however, rejected the plaint under Order VII, rule 11, C. P. C. And this order of rejection of plaint was then upheld vide judgment dated 6- 6-1982 in the appeal filed by the petitioner. The view which prevailed with the learned Courts below was that the respondent was transferred 'a portion of the house, free from all encumbrances and since the property in question was one unit so a transferee of one portion cannot claim easement rights against the other and that in the present case the position was worst as the petitioner has not been transferred the portion in her possession which still vests in the Central Government and hence the petitioner has not acquired any right of easement so far. The petitioner has challenged these findings in the present revision petition and has argued that the petitioner, being an applicant for the transfer of the portion in her occupation, was entitled to maintain the suit and that even "an occupier" of a property can seek protection of easement rights attaching to the property.
2. Learned counsel for the petitioner relied upon Khubchand Khushaldas v. Bulchand Naraindas, to contend that in view of section 4 of Easements Act, a suit by occupier of a house relating to the right to receive light is maintainable. He also relied on B. Nihal Chand and another v. Mst. Bhagwan Del, wherein it was held that where a person is in possession of property on behalf of the owner and enjoys the easement, he can claim easement under section 12 of Easements Act. On appeal, L.
3. P. A. Bench, in its decision reported as AIR 1935 All. 1002 observed as under :- "In appeal the learned counsel for the defendants has first urged before us that there being no finding that the plaintiff is the owner of the house occupied by her, she has no locus standi to maintain the suit. It has been found by the Courts below that the plaintiff has been occupying this house for the last quarter of a century, that her possession has never been challenged during this period and that she is not in wrongful possession of this house at all. Even if she were not the owner, she would have a right as occupier to maintain the suit under S. 4, Easements Act."
4. ' From the report it appears that in appeal plea with 'regard to section 12, Easements Act was not repeated and the view of the learned Single Judge, that the right of privacy based on social custom and pardah system was quite different from the right of privacy based on natural modesty and human morality, was upheld.
2. In order to see the applicability of the view taken in the reported judgments, the narration of factual position regarding this property ma be completed. The petitioner in plaint nowhere claimed that proceeding for transfer of the portion in her possession are pending before the Settlement Authorities or that she had filed any form for transfer of the said portion to her, though her learned counsel, during the arguments has stated that proceedings for transfer of the "undisposed of" portion are going on before the Settlement Authorities. Learned counsel for the respondent submits that the petitioner nowhere figures in any said proceedings if at all being conducted by the Settlement Authorities for disposal of undisposed of portion. Be that as it may, the suit filed by the petitioner was based on claim that she along with her family members was in occupation of the portion adjoining the portion to transferred to the respondent. The petitioner as such admittedly is not owner of the property and she cannot claim easement under section 12 which reads as under:- "An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.
5. ' One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others acquire an easement for the beneficial enjoyment of such property.
6. ' No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease."
7. ' The aforequoted provision read with the judgment delivered in the case of Nihal Chand and another by the learned Single Judge of Allahabad High Court clearly go against the contention of the learned counsel for the petitioner. The relevant part of the judgment reads as under :- "One of the questions that was argued was whether the plaintiff could claim the easement without proving that she was the owner of the house. The question of ownership was however given up in the lower Court and the plaintiff came into Court on the plea that she was the occupier of the house and had been in possession of it for a number of years and that she was therefore, entitled to the benefit of the easement. She could however only enjoy the easement under section 12 of the Act, on behalf of the owner of the house, and it has been suggested that the owner of the house is the defendant-appellant himself. The lower appellate Court has discussed the question of ownership and has found that the appellant certainly acquired a share in the house which may apparently have amounted to half the house, plus 2/3rds of the other half. There is however a definite finding that the plaintiff lived in Dasaundhi Ram's share of the house, and that the house1 2 has been declared by a competent Court to be the property of Dasaundhi Ram, i,e, the person on whose behalf the plaintiff occupies the house and enjoys the easement is Dasaundhi Ram and not the appellant."
8. ' It will, therefore, be seen that the plaintiff in the reported case was not a mere occupier and was claiming the easement on behalf of the owner. In the instant case, on the other hand, the petitioner has not disclosed the nature of her occupation. There is nothing on record that the occupation was authorised or this occupation was either recognised or accepted by the Settlement Department or the Provincipal Government in which the portion in question presently vests. Moreover, in Syed Azizuddin v. Islamuddin, though the point was not finally determined but observation made, bein relevant, may be quoted : "The word "occupier", in section 4 of the Easements Act, 1882 can include a trespasser, but the submission is advanced with reference to land which has admittedly not acquired any easement, therefore, if in such a situation, the word "occupier" is construed to include a "trespasser", it will put a premium on wrong doing and lead to injustice, and such a construction is to be avoided unless the intention of the Legislature is very clear. But the section deals only with easement rights possessed by an occupier, and a trespasser on land, which has not acquired any easement, cannot possess any easement rights by the mere fact of his illegal an of land, because the prescriptive period for acquiring an easement is 20 years, which is much longer than the prescriptive period for acquiring title to land by adverse possession. Additionally section 4 must be read with section 12 which deals with the manner in which easements are created."
9. ' Reference may also be made to Muhammad Ramzan v. Mirza Naseer Beg, wherein it was held that right of easement existed as long as properties remained in evacuee's name but the properties were acquired by the Central Government in 1947 on owner's evacuation and subsequently these vested in the Central Government free from all encumbrances with the result that all aggregates of rights including easements disappeared in view of provisions of section 3 of the Displaced Persons (Compensation aad Rehabilitation) Act, 1958 read with section 15 of the Easements Act, 1882. It was further observed that such houses having been transferred to the respondents for the first time on or after 2-12-1959 the right of easement would not accrue to the transferees unless a period of 20 years expires before to the institution of suits claiming right of easement. In Syed Azizuddin's case it was also held that Government, as owner of land, was a necessary party and a suit wherein rights of easement in respect of the property are claimed, would be liabie to be dismissed on account of non-impleading of the Government i,e, a necessary party. The suit filed by the petitioner was, therefore, liable to be dismissed on the short ground that neither the Provincial Government nor the Settlement Department, which is dealing with such properties, was impleaded as party in the suit. The easement rights claimabie under section 12 of the Easements Act, 1882, cannot be claimed by the petitioner as admittedly she is neither the owner nor her occupation was even asserted to have been acknowledged by the owner. As regards claim of easement rights under section 4 of the Easements Act, 1882, the suit as filed was not maintainable in the absence of the Provincial Government, the owner of the building, on account of mere occupation, the length or nature of which was neither disclosed nor its acceptance by the Settlement Department was even alleged by the petitioner. The suit in these circumstances was clearly misconceived. In case the respondent was in fact blocking the light and air of the other portions of the building or was bloc king the passage leading to the other storeys of the same building, the remedy lay in approaching the ' Settlement Department which may have then initiated proper steps for protecting its right and interest in the `undisposed of portion of the building. Thus, no exception can validly be taken to the order, rejecting the plaint, made by the trial Court.3 4 3 3. For the reasons given above, there is no merit in this revision and the same is dismissed with no order as to costs.
10. AIR 1930 Sind 152 AIR 1934 All. 527 PLD 1971 Kar. 701 1980 CLC 1555